Citation Nr: 0521633
Decision Date: 08/10/05 Archive Date: 08/19/05
DOCKET NO. 97-25 343 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Detroit,
Michigan
THE ISSUES
1. Entitlement to service connection for the cause of the
veteran's death.
2. Basic eligibility for educational benefits for dependents
under 38 U.S.C. Chapter 35.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
M. Salari, Counsel
INTRODUCTION
The veteran served on active duty from December 1969 to
November 1971. He died in January 1981. The appellant is
his daughter.
This matter was initially before the Board of Veterans'
Appeals (Board) from a January 1996 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
Detroit, Michigan. In April 2001, the Board remanded this
matter to the RO for additional development. The RO has
conducted additional development and the case has now been
returned for further appellate consideration.
FINDINGS OF FACTS
1. In January 1981, the veteran died of acute congestive
failure, due to or as a consequence of neoplastic embolism
and pulmonary metastases, due to or as a consequence of
epidermoid sarcoma in the posterior low cervical region.
2. The immediate and underlying causes of the veteran's
death were not shown until several years after separation
from service.
3. The veteran was in Vietnam for at least one day during
active duty service.
4. The veteran died of a sarcoma as a result of exposure to
herbicide agents in service.
CONCLUSIONS OF LAW
1. The criteria for service connection for the cause of
veteran's death are met. 38 U.S.C.A. §§ 1110, 11116, 5103,
5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303,
3.307, 3.309, 3.312, 3.313 (2004).
2. The criteria for entitlement to educational benefits
pursuant to Title 38, United States Code, Chapter 35, have
been met. 38 U.S.C.A. § 3500 (West 2002).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Board notes that during the pendency of this claim, the
Veterans Claims Assistance Act of 2000 (VCAA), was signed
into law. This liberalizing law is applicable to this
appeal.
Because of the favorable outcome in this appeal, any failure
of VA to undertake any duty to assist or duty to notify the
appellant at any step in this appeal, is harmless error.
Factual Background
The appellant contends that while the veteran was stationed
in Hawaii, he was sent on classified temporary duty
assignments to Vietnam, where he was exposed to herbicides.
As a result of this exposure, he died of soft tissue sarcoma.
The veteran's military pay vouchers show temporary duty
assignments between March 1971 and November 1971. Travel to
Vietnam is supported by a pay voucher showing entry to the
Republic of Vietnam on November 4, 1971. He departed Vietnam
the same day. .
The appellant has submitted a letter from the veteran's
treating physician, Dr. Marshall S. Grillo. In this letter,
which was received in December 1998, Dr. Grillo indicates
that the veteran was his patient from 1979 to 1981, and that
he had epidermoid sarcoma in the posterior lower cervical
vertebrae. Dr. Grillo also stated that the veteran revealed
that he was stationed in Hawaii during service, and that he
had been to Vietnam on classified temporary duty assignment.
The medical evidence of record indicates that since 1979, the
veteran had been interchangeably diagnosed with epidermoid
and epithelioid sarcoma. He died in January 1981. His
death certificate indicates that the cause of death was acute
congestive heart failure, due to or as a consequence of
neoplastic embolism and pulmonary metastases, due to or as a
consequence of epidermoid sarcoma in the posterior low
cervical region.
Law & Analysis
Service connection is granted when the evidence establishes
that a particular injury or disease resulting in disability
or death was incurred coincident with service, or if
preexisting service, was aggravated therein. 38 U.S.C.A.
§ 1110; 38 C.F.R. § 3.303. When a chronic disease, such as
malignant tumors, becomes manifest to a degree of 10 percent
or more within one year of separation from service in a
veteran who has served for a period of 90 days or more after
December 31, 1946, such chronic disease may be presumed to
have been incurred in service. 38 C.F.R. §§ 3.307, 3.309. A
veteran's death will be considered as having been due to a
service-connected disability when the evidence establishes
that such disability was either the principal or a
contributory cause of death. 38 C.F.R. § 3.312.
A veteran who served in the Republic of Vietnam during the
period from January 1962 to May 1975, and has soft tissue
sarcoma will be presumed to have been exposed to such
herbicide agent during such service, and the disease will be
considered to have been incurred in service even though there
is no evidence of such disease during active service, unless
there is affirmative evidence to establish that he was not
exposed to any such agent during service. 38 U.S.C.A.
§ 1116; 38 C.F.R. §§ 3.307, 3.309. Service in Vietnam
includes service in the waters offshore, or service in other
locations if the conditions of service involved duty or
visitations to Vietnam. 38 C.F.R. § 3.13(a).
The Board has reviewed the evidence of record and finds that
entitlement to service connection for the cause of the
veteran's death is warranted. Although the record does not
indicate that any of the causes of death were shown during
service or within one year after separation from service, the
record does indicate that the veteran was physically in
Vietnam for at least one day and thus was presumptively
exposed to herbicides. There is no conclusive evidence to
establish that on November 4, 1971, the veteran was
physically located at duty station other than in Vietnam.
The Board finds that service connection for the cause of the
veteran's death is warranted.
In order to establish entitlement to Chapter 35 educational
benefits, it must be shown that the veteran died of a
service-connected disability, or that at the time of his
death, the veteran had a total and permanent disability
evaluation for service connected disability. 38 U.S.C.A. §
3500. In light of the Board's decision with regard to the
claim for service connection for cause of death, and given
that the veteran is service connected for a sarcoma which
caused his death, this claim can be allowed.
In reaching this decision, the Board considered the doctrine
of reasonable doubt. 38 C.F.R. § 3.102 (2004).
ORDER
Service connection for the cause of the veteran's death is
allowed.
Basic eligibility for educational benefits for dependents
under 38 U.S.C. Chapter 35 is allowed.
____________________________________________
RENÉE M. PELLETIER
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs